EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-011
PARTIES
An employee
AND
An employer
(Represented by Morrin and McConnell Solicitors)
File reference: EE/2014/241
Date of issue: January 2016
HEADNOTES: Employment Equality Acts Sections 6, 8, Racial Discrimination and Harassment.
1: Background
This dispute concerns a claim by Mr. MM that he was Harassed and Discriminated against on the grounds of Race by Employer DFF contrary to the Employment Equality Acts.
The Complainant referred a claim to the Director of the Equality Tribunal on the 1st May 2014 , under the Employment Equality Acts. On the 29th October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Michael McEntee, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 3rd November 2015.
2: Complainant’s Submission
2:1 The Complainant was a general operative employed since 17th December 2008. He maintained that he was treated worse than other employees and singled out because of his nationality. Specific issues referred to were
Ø His raising unwanted questions regarding Heath and Safety in the Workplace.
Ø In his early years at work he was the subject of a joke regarding the size of his overalls, they were too big, but his requests for a smaller size were ignored. In November 2013 he was referred to by his Supervisor as “his bitch”.
Ø He was discriminated against for the last four years in the allocation of overtime as he had refused to work a continuous set of 17 hours shifts.
Ø He was discriminated against in pay increases – he had no increase in the last 5 years.
Ø When he reported dangerous work practices he was often sent home.
Ø Suggestions made in relation to Machine improvements were ignored or taken as their own by Supervisors.
Ø He had difficulty in getting his holidays agreed in 2012.
Ø He was asked to drive Forklift Trucks although he did not have proper certification. His request for a Training Course was refused.
2:2 After taking medical advice in relation to Stress/Bullying and Intimidation the Complainant decide to leave the employment in January 2014. He had been on Sick Leave from the 17/12/2013 to the 20th/01/2014). The Respondent referred him to MedWise Occupational Health, Respondent’s Medical Advisors, for an assessment on the 24th January 2014. He was informed by letter dated the 31st January 2014 of the outcome of the MedWise assessment. He was deemed fit to return to work.
Subsequent correspondence followed but by final letter of the 17th February 2014 the Complainant confirmed to the Respondent that he wished to leave the employment for the sake of his health.
3: Respondents Submission.
3:1: The Respondent submitted that the Complainant had failed to make a Prima Facie case of Racial Discrimination.
Most of the Harassment allegations made by the Complainant were out of time and there was a significant paucity of details to support almost all of the allegations made. Any realistic investigation was largely impossible in these circumstances.
The Respondent has a multi-national work force of which approximately 30% are of Polish origin – the complainant’s nationality. The remainder of the work force are of varying nationalities being Latvian. Lithuanian, Brazilian and Irish. In this situation the Respondent is acutely conscious to treat all employees with respect and to ensure that no employee is singled out because of his national origin. Detailed Bullying, Harassment and Grievance Policies are in place.
The Complainant received and signed for a copy of the Company Handbook on the 17th December 2007.
Extensive written and oral evidence was provided in support of all these points.
3:2 The Complainant resigned his employment by letter of the 15th January 2014. The Respondent was surprised by this resignation and initially did not accept it at face value.
By letter of the 16th January 2014 the Respondent’s HR Manager, Ms.EF, advised him of the grievance Procedure in the Company (Details supplied to the Tribunal) and referred him to MedWise their Occupational Health Advisors for a medical /occupational health examination.
This took place on the 24th January 2014. He was deemed fit to return to work. The HR Manager, Ms. EF, wrote to him and invited him to return to work on the 17th February and again advised him to utilise procedures to raise a grievance.
The Complainant replied by letter of the 17th February and confirmed his resignation.
A copy of the MedWise Occupational Health Report was submitted in evidence by the Respondent. This confirmed, from conversations reported by the Physician, that the decision to resign was well thought out and not taken lightly.
3:3 The Respondent concluded by re-stating that the Complainant had not made a prima facie case of Discrimination or Harassment
4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4:1 The issue for decision in this case is whether or not Discrimination and related Harassment on racial grounds took place
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of Discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
The Respondent quotes the Dublin Corporation v Gibney (EE5/196) definition of prima facie evidence
“Evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that the Discrimination has probably occurred.”
4:2 In the present case there is a significant lack of hard evidence other than unsupported allegations most of which are out of time. This makes his claims of Harassment very difficult to substantiate.
Even allowing for the Allegations being admissible it would be a significant hurdle to establish a racial Discrimination basis, against an individual Polish employee, for the alleged actions of the Respondent. The Complainant worked on a Team of up to 13 employees of which approximately 8, a clear majority, were of Polish origin.
4:3 The Complainant was afforded an opportunity to raise a grievance in the letters from the HR Manager on the 16th January and the 12th February 2014. This opportunity was not taken up.
The Respondent has well documented and clear procedures in this area which were accepted and signed for by the Complainant.
Evidence given by the Respondent’s Managers at the Oral Hearing was professional and competent.
4:4 The initial letter of resignation from the Complainant was not initially accepted at face value by the Respondent and the Complainant was afforded a clear opportunity to return to work following being declared fit by the MedWise report.
In the MedWise report “workplace unhappiness” is referred to but again to base this on a Racial Discrimination basis is not evidentially possible.
In his direct evidence which strongly felt and clear cut it was obvious that Complainant had been unhappy at work for some time. However, no basis
among his many work related complaints, for a Racial Discrimination claim could be found.
4:5 Taking all the above factors into account the Tribunal could not find any substantiated, supported by clear evidence, case of Discrimination and harassment, based on the racial origins of the Complainant.
5: DECISION
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
I have investigated the above complaints and make the following decisions in accordance
with Section 79 of the Acts that:
Ø The Complainant has not succeeded in establishing a claim of Discrimination or harassment on racial grounds.
__________________
Michael McEntee
Adjudication Officer/Equality Officer
29th January 2016